December 19, 2009 – New York Times (NY)

Justices Revisit Rule Requiring Lab Testimony

By Adam Liptak

WASHINGTON -- Virginia Hernandez Lopez admitted to
knocking back two shots of tequila with Sprite chasers on an August night
in Julian, Calif., a couple of years ago. But she said she was not drunk
when her Ford Explorer collided with an oncoming Toyota pickup truck later
that night, killing its driver.

In May, a California state appeals court affirmed Ms.
Lopez’s conviction for vehicular manslaughter. Her blood-alcohol level
two hours after the accident was, according to a report presented to the
jury, just over the legal limit of .08 percent.

But the appeals court reconsidered the case after a
decision in June from the United States Supreme Court that prohibited
prosecutors from introducing crime lab reports without testimony from the
analysts who prepared them.

The appeals court reversed Ms. Lopez’s conviction,
saying prosecutors had violated her constitutional right to confront
witnesses against her by failing to put the analyst who prepared the
blood-alcohol report on the stand.

But now, in an unusual move, the Supreme Court will
hear arguments on Jan. 11 in a new case that raises questions about how
lower courts may carry out its six-month-old precedent. Many state
attorneys general and prosecutors are hoping the court will overrule its
decision in the earlier case, Melendez-Diaz v. Massachusetts, before it
can take root, saying it is a costly, disruptive and dangerous misstep.

“Already data and anecdotal evidence are
demonstrating an overwhelming negative impact,” a friend-of-the-court
brief submitted by 26 attorneys general last month said. The decision,
they said, “is already proving unworkable.”

Rather than overturning the court’s June decision
in the new case, which involves two Virginia cocaine trafficking
convictions, the justices may simply clarify the ground rules for when and
how analysts’ testimony must be presented.

The 5-to-4 vote in the original case also raises
issues about the vulnerability of the decision because there were unusual
coalitions on both sides, with Justice David H. Souter, now departed from
the court, in the majority. His replacement, Justice Sonia Sotomayor, is a
former prosecutor, and her views on the issue are unknown.

Defense lawyers say the costs of complying with the
decision are minimal. “Sufficient data and experience are already
available to demonstrate that the burden is a modest one, easily borne,”
lawyers in the Virginia case told the Supreme Court this month.

They added that the costs associated with other
constitutional rights are much larger, pointing to, for instance, the
Supreme Court’s decision in 1963 in Gideon v. Wainwright, which said
that poor people accused of serious crimes are entitled to court-appointed
lawyers.

“Think about the fiscal consequences of that,”
said Ms. Lopez’s lawyer, Janice R. Mazur. Requiring live testimony from
analysts, she added, “costs money, but that’s the cost of our freedom
and our form of government.”

Ms. Mazur added that cross-examination of the analyst
would have helped her client’s case. “There are questions that could
have and should have been asked,” Ms. Mazur said.

Since the Melendez-Diaz case, the State of
Massachusetts told the United States Supreme Court last month that it now
faces “daunting volumes of cases to manage.”

Daniel F. Conley, the district attorney for Suffolk
County, which includes Boston, said most criminal defense lawyers there
were insisting that analysts testify, “posing a very serious
administrative problem for us in drug cases.”

There are 35 chemists in the state’s drug
laboratories, according to the state’s brief, and there were more than
20,000 drug prosecutions in Massachusetts in the last fiscal year.

Court appearances are keeping analysts away from
their labs, Mr. Conley said. “The backlog has gone from three or four
months very rapidly to eight or nine months,” he said.

Other kinds of cases may be affected as well.

The second ruling in Ms. Lopez’s case, which found
that her constitutional rights had been violated, has had “a tremendous
negative impact,” the San Diego district attorney’s office told the
State Supreme Court last month, and will affect prosecutions ranging
“from misdemeanor driving under the influence cases to capital murder
cases.”

Lawyers for the defendants in the new Supreme Court
case, Briscoe v. Virginia, No. 07-11191, acknowledged that the
Melendez-Diaz decision “creates some additional cost” in states that
had not already recognized a right to live testimony. But they said those
costs were minor and “constitutionally irrelevant.”

In the case, prosecutors in Virginia offered proof
that the “off-white, chunky solid material” and “white, rock-like
substance” that the police found in Mark A. Briscoe’s kitchen and
shorts was cocaine by submitting “certificates of analysis” signed by
a forensic scientist. Mr. Briscoe argues that this violated his
constitutional rights because the scientist did not take the stand.

The immediate issue in the case is whether a hybrid
procedure used in Virginia satisfied the precedent set by the Supreme
Court in the Melendez-Diaz case. Prosecutors there were allowed to present
paper reports during their case but were required to produce the analysts
responsible for them for cross-examination during the defense’s case if
requested.

In its brief supporting the Virginia prosecutors, the
federal government argued that this procedure was more efficient than
requiring the prosecution to present analysts during its case, pointing to
the experience in Washington, which used Virginia’s system until 2006.
Washington now uses the system preferred by defense lawyers -- that of
presenting live testimony from analysts during the prosecution’s case.

After the change to the stricter system, demands for
court appearances from forensic chemists in Washington spiked to more than
50 a month from around 10, the brief said, before settling around 24.

But it is not clear that the additional work was
especially onerous. By the defendant’s calculations, the additional
appearances amounted to “a little more than 1,000 additional hours per
year -- or about one-half a person-year.” The Drug Enforcement
Administration, in a letter to a Justice Department lawyer last month,
acknowledged that the number of chemists involved in drug cases has
dropped to 18 from 23 since 2006.

Ohio, too, has long had a system that complies with a
strict interpretation of the Supreme Court’s ruling in Melendez-Diaz.
Its 14 forensic scientists made 123 appearances in drug cases in 2008, or
fewer than one a month each, according to the state’s solicitor general.
They were away from the lab an average of five hours each time.

On Dec. 2, the California Supreme Court agreed to
hear Ms. Lopez’s case and three others arising since the ruling in June.
In the Lopez case, the court asked for briefing on whether her
constitutional rights were violated “when the trial court admitted into
evidence the results of blood-alcohol level tests and a report prepared by
a criminalist who did not testify at trial.”

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